Perry v. Rushen, No. 81-4407

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before FLETCHER, POOLE and CANBY; CANBY
• Citation: 713 F.2d 1447
• Decision Date: 26 August 1983
• Docket Number: No. 81-4407
• Parties: 13 Fed. R. Evid. Serv. 1630 Cornelious PERRY, Petitioner-Appellant, v. Ruth L. RUSHEN, et al., Respondents-Appellees. CA

Page 1447

713 F.2d 1447 13 Fed. R. Evid. Serv. 1630 Cornelious PERRY, Petitioner-Appellant,
v.
Ruth L. RUSHEN, et al., Respondents-Appellees. CA No. 81-4407. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Jan. 12, 1983.
Decided Aug. 26, 1983.

Page 1448

Mark Fogelman, Deputy State Public Defender, San Francisco, Cal., for petitioner-appellant.

Kristofer Jorstad, San Francisco, Cal., for respondents-appellees.

Appeal from the United States District Court for the Northern District of California.

Before FLETCHER, POOLE and CANBY, Circuit Judges.

CANBY, Circuit Judge:

The appellant, Cornelious Perry, was convicted of aggravated assault in California Superior Court. Contending that the exclusion of two defense witnesses violated due process, Perry petitioned for a writ of habeas corpus in federal district court. The district court denied the petition, and Perry appeals. We affirm.

FACTS

A young woman, walking through Golden Gate Park at about 4:30 p.m., stopped to ask directions of a man who was jogging with a dog. The man gave her directions and then, against her wishes, began to walk with her. The man offered her some money, which she refused. He then grabbed her around the neck and began trying to pull her off the path. When the woman screamed and clung to tree branches, he banged her head against them. The screams attracted bystanders. The assailant fled. One citizen chased the assailant and, as the chase neared a police station, ran in to get help. Emerging, the citizen saw a man standing on the sidewalk with his dog. The citizen told the police that this

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was the man he had been chasing, and the police arrested him. The man was Perry.

The victim identified Perry as her assailant at the police station shortly after the attack and again at trial. She based her identification on Perry's general appearance and on a distinctive scar on his forehead. Other witnesses also identified Perry as the man they had seen in the park shortly before the attack and again when he was running from the area after the screams were heard.

In his own defense, Perry testified that he had never entered the park that day. Perry sought to support his story by introducing evidence that another man, Wolfe, might have committed the assault and been confused with Perry. The evidence consisted of testimony of two witnesses who had been robbed and raped by Wolfe in the same area of the park. One attack had occurred exactly three years earlier, and the second only an hour before the assault with which Perry was charged. Both Perry and Wolfe are black, of similar height and weight, and had distinctive "sectionally braided" hair on the day of the assault. On that afternoon, Wolfe was wearing a brown leather jacket and blue jeans; Perry wore a light brown jacket and blue warm-up pants. Wolfe has been convicted of both previous attacks.

California Evidence Code section 352 governs the admission of such collateral evidence:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ¹

California cases supply a gloss on section 352 when evidence is advanced that a third party may have committed the crime. Under the so-called "Mendez-Arline " rule, evidence of third party culpability is inadmissible "if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense." People v. Green, 27 Cal.3d 1, 22, 609 P.2d 468, 480, 164 Cal.Rptr. 1, 13 (1980). Accord People v. Mendez, 193 Cal. 39, 223 P. 65 (1924), overruled on other grounds, People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974 (1957); People v. Edmond, 200 Cal.App.2d 278, 19 Cal.Rptr. 302 (1962); People v. Arline, 13 Cal.App.3d 200, 91 Cal.Rptr. 520 (1970).

Three times during the course of the trial the judge considered whether to admit evidence of Wolfe's acts. Perry argued that this evidence showed that a similar looking person was in the same area of the park at about the same time, and was committing assaults in a similar fashion. After viewing photographs of Perry and Wolfe, however, the judge decided that misidentification was unlikely: "Except for the race of the man, there is nothing similar." The judge therefore excluded the testimony under Rule 352.

Perry was convicted and sentenced to three years' imprisonment. The California Court of Appeals affirmed the conviction over a vigorous dissent. People v. Perry, 104 Cal.App.3d 268, 163 Cal.Rptr. 522 (1980). The California Supreme Court declined to hear the case, id., and the United States Supreme Court denied certiorari. Perry v. California, 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 223 (1980). Perry then petitioned the district court for a writ of habeas corpus. The district court considered his claims thoroughly, but dismissed them. Perry v. Watts, 520 F.Supp. 550 (N.D.Cal.1981). This appeal followed.

I.

Perry argues that the application of California evidence law violated his sixth and

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fourteenth amendment rights. Generally, of course, the states are free to fashion rules of evidence and procedure for their own courts. The United States Constitution, however, imposes some limits on the state's power to exclude evidence in criminal cases.

The sixth amendment guarantees the accused "compulsory process for obtaining witnesses in his favor." This right is a part of the due process that the fourteenth amendment requires of the state. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-1923, 18 L.Ed.2d 1019 (1967). Compulsory process implicitly prevents the state from arbitrarily excluding such testimony. "The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use." Id. at 23, 87 S.Ct. at 1925. The defendant's general fourteenth amendment right to due process also restrains the operation of state rules of evidence. Due process "is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). State evidentiary rules "may not be applied mechanistically to defeat the ends of justice." Id. at 302, 93 S.Ct. at 1049. These twin strands intertwine to restrain state law. See id.

The defendant's right to present evidence, however, is not absolute. "In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302, 93 S.Ct. at 1049 (right to confront witnesses). Even relevant and reliable evidence can be excluded when the state interest is strong. See Washington, 388 U.S. at 23 n. 21, 87 S.Ct. at 1925 n. 21 (attorney-client privilege).

Supreme Court decisions provide limited guidance in resolving this clash between state rules and the defendant's right to introduce evidence. On several occasions, the Court has held that state evidentiary rulings were unconstitutional. Yet, in each case, the court has limited its rulings to the specific facts before it. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151, 60 L.Ed.2d 738 (1979) ("these unique circumstances"); Chambers, 410 U.S. at 303, 93 S.Ct. at 1050 ("under the facts and circumstances of this case"); Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330 (1972) ("in the circumstances of this case"). The Supreme Court has found it unnecessary to formulate any flat test to determine when state rules of procedure or evidence trespass upon constitutionally protected ground.

The Supreme Court seems to have applied a balancing test to resolve such conflicts, weighing the interest of the defendant against the state interest in the evidentiary rule. See Chambers, 410 U.S. at 295, 93 S.Ct. at 1045 ("Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"); Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151, 60 L.Ed.2d 738 (1979); Washington v. Texas, 388 U.S. at 19-23, 87 S.Ct. at 1923-25. At least two circuits have adopted such an approach. Pettijohn v. Hall, 599 F.2d 476, 481 (1st Cir.1979), cert. denied, 444 U.S. 946, 100 S.Ct. 308, 62 L.Ed.2d 316 (1979); McMorris v. Israel, 643 F.2d 458, 461 (7th Cir.1981), cert. denied, 445 U.S. 967, 102 S.Ct. 1479, 71 L.Ed.2d 684 (1982); Alicea v. Gagnon, 675 F.2d 913, 923 (7th Cir.1982). We conclude that a balancing test is appropriate in these situations.

The selection of a balancing approach, however, does not end our inquiry; we must still determine what weight the various interests will carry when placed on the scales. The right to present a defense is fundamental. Chambers, 410 U.S. at 302, 93 S.Ct. at 1049; United States v. Ballesteros-Acuna, 527 F.2d 928, 930 (9th Cir.1975); United States v. Garner, 581 F.2d 481, 488 (5th Cir.1978); United States v. Thomas, 488 F.2d 334, 335 (6th Cir.1973). Because

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this right is so important, language from some cases and commentary suggests that the defendant's right carries conclusive weight, and that the exclusion of any relevant evidence is unconstitutional. Perry argues that our decision in United States v. Armstrong, 621 F.2d 951 (9th Cir.1980), supports this view. In that case, the trial court excluded evidence that another man, also matching the description of the robber, had used bait money from the robbery to purchase a car. We reversed:

Fundamental standards of relevancy, subject to the discretion of the court...